Written by: Jessica A. Goldfarb
Defendants in the Wind and Latitude Condo Association class action, in what some are calling the biggest construction defect case in history, are firing back. So far, only certain pipe manufacturers and suppliers have been named but some believe it is only a matter of time before fire sprinkler contractors and installers are also brought into this litigation. Named defendants Allied Tube & Conduit, Tyco International, Lubrizol Advanced Materials, Victaulic Co., Georg Fischel Harvel, Nibco, Spears Manufacturing, HD Supply Waterworks and Supply Network, Inc., have all filed motions to dismiss.
These manufacturers and suppliers are raising various defenses to negate their liability for the alleged defects in the installed CPVC fire sprinkler systems. Many are relying on the Economic Loss Rule which prohibits recovery when there is no personal injury or ‘other property’ damage other than to the product itself. The focus here is on the term ‘other property’ and whether the CPVC fire sprinkler system is a separate part of the building. If not, and the building in its entirety is considered the product at issue, then any damage to the building would be considered damage to only the product itself, and not ‘other property’ as defined by this particular statute. Defendants are also claiming that the allegations speak to possible future injuries which have not yet occurred. In other words, even if the defect exists, there are no existing injuries upon which these Plaintiffs can presently seek a legal remedy. Lastly, they argue that the Plaintiffs are not the proper parties entitled to bring these legal claims. Many Defendants assert that these ‘alleged’ injuries to condo property do not fit into the definition of a common element that would enable the Association to act on behalf of its owners/members. Instead the Defendants claim that the injuries fall outside the scope of a common element and are therefore limited to separate actions by individual unit owners.
This class action is only getting started and the potential of adding fire sprinkler contractors as defendants is surely pretty high. After all, plaintiff associations have alleged failures to use reasonable care in relation to the CPVC pipe and have claimed breaches of customary warranties of fitness as to the CPVC pipe used in fire sprinkler installations. It doesn’t seem like too much of a stretch to this writer for these or other plaintiffs to implicate fire sprinkler contractors and installers under these same theories. To date there have been over 130 individual pleadings and legal documents filed in this one case. We would expect much more to follow, for sure.